Barbeques Galore Pty Limited

[2019] FWCA 5489

[2019] FWCA 5489

The attached document wholly replaces the document previously issued with the code [2019] FWC 5440 on 6 August 2019.

Associate to Deputy President Cross

7 August 2019

[2019] FWCA 5489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Barbeques Galore Pty Limited
(AG2019/2298)

BARBEQUES GALORE ENTERPRISE AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT CROSS	SYDNEY, 6 AUGUST 2019

Application for variation of the Barbeques Galore Enterprise Agreement 2019.

[1] An application, pursuant to s.217 of the Fair Work Act 2009 (Cth) (the “Act”) was filed on the 28 June, 2019, by Barbeques Galore (Aust) Pty Limited (the “Applicant”).

[2] The application seeks the variation of an ambiguity or uncertainty in respect of Part 8 of the Barbeques Galore Enterprise Agreement 2019, to take effect from 20 June, 2019.

[3] The Applicant, in their Form F1, submits that the uncertainty arises as follows:

“Clause 4.2 of the BBQG Agreement provides as follows in relation to the wages of the Employees (emphasis added):

“4.2 Wages and Wage Increases

(a) The wages that will apply from the commencement of this Enterprise Agreement are set out in Part 8 of this Enterprise Agreement. The Enterprise Agreement ordinary hourly rate of pay is set at 0.25% above the modern award minimum rates (as per clause 17 of the modern award).

(b) From 2019, Barbeques Galore will increase the Enterprise Agreement wage tables (Part 8 herein) in accordance with determinations of the Fair Work Commission.

(c) In July of each year, or on any other change to the modern award wage rates, Barbeques Galore will publish a Barbeques Galore Wage Notice setting out the ordinary hourly rates of pay, junior rates and penalties that will apply.”

Part 8 of the BBQG Agreement sets out the rates of pay that applied to the Employees from 1 July 2018.

The rates included in Part 8 of the BBQ Agreement were incorrectly calculated to be 2.5% above the GRIA minimum rates and not the agreed 0.25% as set out in clause 4.2(a) of the BBQG Agreement.

For example, the ordinary hourly rate for a Retail Employee Level 1 under the GRIA from 1 July 2018 was $20.79 per hour. The rate included in Part 8 of the BBQG Agreement was $21.31 per hour. This is 2.5% higher than the GRIA rate. In accordance with clause 4.2(a) of the BBQG Agreement, the rate in Part 8 should have been $20.84 per hour, which is 0.25% higher than the GRIA rate.

Clause 4.2(a) of the BBQG Agreement is consistent with the agreement position reached between BBQG, the Employees and the Shop, Distributive and Allied Employees’ Association (SDA) during negotiations for the BBQG Agreement that the rates of pay would be 0.25% above the GRIA rates.

BBQG submits that:

(a) firstly, an objective assessment of the words used in clause 4 and Part 8 of the BBQ Agreement identify that there is an uncertainty or ambiguity between the operation of the two provisions and they are susceptible to more than one meaning; and

(b) secondly, having regard to the mutual intention of BBQG, the Employees and the SDA at the time the BBQG Agreement was made as set out in paragraph 9 above, the Commission should exercise its discretion to vary the agreement as requested to remove the ambiguity or uncertainty in clause 4 and Part 8 of the BBQG Agreement.”

[4] On 18 July, 2019, I issued correspondence from my Chambers to the Applicant raising several queries in the following terms:

1. “Why have the Shop Distributive and Allied Employees Association not been listed as the Respondent in their Form 1;
2. Were there any other bargaining representatives in the approval process?
3. If yes to point 2, what steps, if any, were taken to ascertain the views of the bargaining representatives in respect of the approval process?”

[5] On 23 July, 2019, the Applicant, through their representative, Mr Ross Clarke, provided in the following terms responses to my queries:

1. “The SDA was a bargaining representative in the negotiations for the EA and is covered by the agreement. In our view they are not a respondent to the application although we are prepared to amend the application accordingly if the commission is of a different view.

2. There were no other bargaining representatives in the negotiations.

3. The ambiguity, and approach to correcting it, was discussed and agreed with the SDA in advance of filing the application on 28 June 2019. The SDA have been cced into this email (Angelo Pardo).”

[6] For the purposes of clarity, and in light of the correspondence received from Mr Clarke outlined in paragraph [5], my Chambers directed the Applicant to re-file their application to list the Shop Distributive and Allied Employees (“SDA”) as the Respondent. The Applicant, as directed, filed a copy of same, on 29 July, 2019.

[7] On 31 July, 2019, the SDA confirmed their position in relation to the current application in the following terms:

1. “On the basis that the variation accurately reflects what was settled in negotiations, the SDA supports the application to vary the EBA;

2. Considering our position relating to 1, the SDA only seeks to be heard should the Commission require any further clarification.”

[8] Section 217 of the Act provides as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[9] I am satisfied that I should exercise my discretion to vary the Agreement to remove the ambiguity or uncertainty by consent of the parties. In particular, I note the Respondent’s position during the approval process and their current position in respect of the current variation application. The order sought by the parties is as follows:

“The rates reflected in Part 8 of the Barbeques Galore Enterprise Agreement 2019 are to be varied from 2.5% above the General Retail Industry Award to 0.25% above the General Retail Industry Award as set out in Clause 4.2(a) of the Agreement.”

[10] The variation shall take effect on and from 20 June, 2019. I order accordingly.

DEPUTY PRESIDENT

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